It is not every day that one
encounters a face-off between
anti-tobacco litigator Richard
“Dickie” Scruggs and the vicechairman
of Covington &
Burling, Philip K. Howard, who
is also an adamant tort reformer
and author of “The Death of
Common Sense.” The Yale Federalist
Society accomplished
this feat on November 13 by
bringing the two legal giants together
in a debate on tort reform.

Howard began the debate by
arguing that today’s litigation
system has harmed
the fabric of our culture by
making people naturally
distrust the legal system.
Physicians, for instance,
see patients “as potential
plaintiffs” and perform
unnecessary procedures
and tests to protect themselves
against lawsuits.
They also cannot be candid
when speaking to their
colleagues, because anything
they say could later
be used against them.
Teachers have problems
disciplining children in
the classroom for fear of
legal hearings. Howard mentioned
the picture of a sad child
leaning against an apathetic
teacher who would not hug the
child because the act could be
interpreted as unwanted sexual
contact. In other words, Howard
believes: “Nobody is doing
what they think is right” because
of the justice system with
its shaky standards.

He elicited many laughs with
his description of a tag found on
strollers, “Caution: Remove
baby before folding.” Nothing
can be proven when it comes to
medical judgments or which
products should have warnings.
More seriously, Howard made a
strong point about how no one
knows today what the court will
decide in a given case. He explained
that people need to understand
the law and how the
justice system will interpret it in
order to plan their lives accordingly:
they want to feel good
about doing what is right and
bad about doing what is wrong.

It was Dickie Scrugg’s turn to
give his interpretation of the
American judicial system. His
slick appearance and charming
smile that
would easily
fit into a
toothpaste
ad were not
quite able
to make up
for the
holes in his
arguments.
“This is a
great time
to be a lawyer,”
Scruggs told his Yale Law
School audience. He believes
that the justice system is becoming
increasingly important in our
society and accused Howard of
wanting to limit the role of juries.
Scruggs tried to differentiate
himself from lawyers that work
for large firms, such as Philip
Howard. Scruggs sees big firms
as process-oriented entities that
protract legal proceedings in order
to bill clients as long as possible,
while lawyers like him are
result-oriented. Scruggs
warned Yale Law students
against joining the ranks of corporate
lawyers, and metaphorically
spoke of these students
being the next “Jedi knights” of
the law.

His statements, wrapped in
many words and smiles, could
not help but boil down to a
consequentialist approach to
the law where any means are
allowed. It is of course easier to
present oneself as the champion
of the masses than an enthusiast
of due process. Scruggs did
not answer Howard’s criticism
that people do not know today
how the legal system will react
to a tort
case and
that this
can have
grave consequences
on the
functioning
of society.
He disagreed
that
physicians
order unnecessary
tests. Brushing aside
extreme cases as occasional
abuses that will happen in any
scenario, he repeated that what
is true of the tort system is also
true of democracy by invoking
Churchill’s words: “Democracy
is the worst system except for all
the others.”

Howard denied Scruggs’ accusation
that he wants to take
away people’s right to sue and
claimed that he would rather like
to apply more stringent criteria
to cases. He emphasized that
what really mattered was not
what happened in the courtroom,
but the impact on society.
Innovation in many areas such
as medicine is stifled because
people are afraid of being sued.
Howard wants to ensure that
the law stands for something.
Unfortunately, it was unclear at
times what he meant by that and
what kind of standards he
would set.

Howard wants the legislature
to decide what is reasonable for
social problems instead of
letting a jury or threat thereof
have such a great say in matters
of policy. The jury should only
decide facts, not standards. The
tort reformer tried to clear up a
misconception: “There is no
right to sue for anything …
We’ve turned the idea of rights
upside down.” Today, he said,
anyone can just go sue out of
anger. Again, one got a good
idea of what people should not
be able to sue for, but he did not
elaborate on cases that represent
legitimate litigation. While
this is consistent with his emphasis
on letting legislators decide
this question, it leaves one
somewhat dissatisfied; in the
end, it might have been interesting
to know what Philip Howard
would find to be appropriate
standards if he were in the position
to legislate.

Trying to be diplomatic,
Scruggs said that everyone has
issues with the civil justice
system and that there is no consensus
on how it can be
changed. His point that no
lawyer would ever willingly take
on a “frivolous” case seemed
odd in the light of the lawyers
who actually admit to
ambulance chasing – unless
that is all legitimate and benefits
the public in Scruggs’ eyes. He
believes that physicians and
lawyers will always be natural
enemies. At his mention of lawyers
being able to be sued and
disbarred like physicians, one
could not help but wonder how
many physicians had actually
ruined lawyers. Scruggs claimed
that insurance agencies use the
risk of litigation as an excuse to
raise premiums more than that
risk actually warrants, which
Howard later countered by saying
that there is a factual dispute
about this practice. In an attempt
at humorous cynicism, he said:
“When a worker kills his boss,
it’s murder. When a boss kills his
worker, it’s workers’ compensation.”
He pointed out that
Howard admitted that the role of
juries would be restricted.
Scruggs thinks this will lead to
more cases of mandatory
arbitration and “prevent the
common person from having redress.”

Each side appeared to attack a
system rather than presenting a
constructive view of what
should be done to correct the
problems within the current
judicial system. Howard
responded to Scruggs’ remarks
by denouncing today’s judiciary
as “law à la carte” that does not
present any consistent
structure. Rather than suing
HMOs, Howard said, bad
healthcare providers should
have stricter regulations
imposed on them. He advocated
the introduction of positive laws
and possibly having judges
make decisions, but not
uninformed juries. While this
seems to remove some of the
uncertainty involved in torts today,
certain politically motivated
judges could still severely
abuse the system. Scruggs argued
that it took the tobacco
litigations to finally put tobacco
regulations into place as well. In
other words, he strongly believes
that legislation is the
ultimate solution, but sees
litigations as a good way to
get there. Scruggs also emphasized
that capping the
amount people receive in
torts would be wrong, given
that one cannot put a cap on
“pain and suffering.”

It seemed at times that the
two lawyers were talking past
each other. The rhetoric
tended to be vague, and it
was difficult to get a good
grasp on what actions they
would actually take if given
the chance. Part of that can
be explained, however, by the
nature of the topic. Dickie
Scruggs does not believe the
tort system should change in
any major ways; he is a man of
action rather than a man of
theories, who has had great
financial success in the courts.
Philip Howard, on the other
hand, does not want a society
where men like Scruggs can use
juries to bring about
reformulations of the law. The
topic is so complex that a twohour
debate naturally has
difficulties solving the issue. In
the end, Scruggs seemed
unconvincing in his attempt to
minimize the abuses the tort system
has allowed
so
far. One
would have
liked to
hear more
from both
Scruggs
and
Howard on
how the
culture is
affected
not just in
terms of
people’s
expectations before the law, but also in
how the idea of personal responsibility
takes on new meaning
if individuals can potentially
be compensated for taking care
of themselves poorly. Howard
let Scruggs get away with painting
a world where the innocent
small man fights evil big business.
It is perhaps at that point
that a future debate on tort reform
would have to pick up: how
much common sense should be
expected from the average man
and what should be done if he
fails to display it?